Muslims being singled out: Petitioners oppose Waqf Amendment Act in Supreme Court

The Waqf (Amendment) Act, 2025 has singled out the Muslim community by imposing unfair requirements on them for registration of properties as waqf while endowments made by other religious communities are not subject to such onerous conditions, the petitioners challenging the law argued before the Supreme Court on Tuesday..Petitioners' counsel Rajeev Dhavan, Abhishek Manu Singhvi and Huzefa Ahmadi all made submissions to that effect before a Bench of Chief Justice of India (CJI) BR Gavai and Justice AG Masih "It is only the Muslim religion, where property has been dealt with in this way. We are a secular nation. A client of mine, who is Sikh, says I want to contribute to the waqf and I believe this property should not be taken away. This case affects Article 25, 26, 29 ... Article 29 is the right to preserve culture ... Take that away, and entire secular edifice that your lordships have built time and time again (will be taken away)," Dhavan said."Endowments are there in every religion. Which other religion while making a religious endowment is asked for proof of practicing that religion for 5 years or 10 years? This provision goes on short ground of violating Article 15," Singhvi argued."Ipso facto, it is retrospective and virtually by sleight of hand, my entire waqf gets obliterated. Argument on Article 15 is (important). This only singles out one particular community," Ahmadi contended.During the hearing, the Court too flagged the fact that the Waqf (Amendment) Act, 2025 has introduced drastic changes as regards the consequences when it comes to non-registration of waqfs.This was after Senior Advocate Kapil Sibal, also appearing for the petitioners, made arguments concerning the same.Under the earlier law, the consequences of non-registration affected only the muttwali but that is not the case with the present law, the Court noted.It was hearing pleas seeking a stay on the controversial law.The Court had earlier said will consider whether interim relief of stay is required on three issues - waqf by user, nomination of non-Muslims to the Wakf Council and State Waqf Boards and identification of government land under waqf. The Central government had then told the Supreme Court that certain key provisions of the controversial Waqf (Amendment) Act, 2025, including the formation of the Central Waqf Council and Waqf Boards and provisions on de-notifying properties already declared or registered as waqf, will not be acted upon for the time being.When the matter came up for hearing today, Solicitor General Tushar Mehta said that the written submissions filed by the petitioners spill over into many issues but the Court should restrict itself to the three issues earmarked by it earlier."The Court had earmarked three issues. We had filed our response to these three issues. However written submissions of petitioner now exceed to several other issues. I have filed my affidavit in response to these three issues. My request is to confine it to the three issues only," he stated.However, Sibal said that the matter has to be heard in detail and the Court should not confine itself to the three issues."The then CJI said we will hear the case and see what interim relief has to be granted. Now we cannot say confine to three issues. This is about capture of waqf lands," he submitted. Singhvi seconded Sibal. "Yes, there cannot be any piecemeal hearing," he stated..Background.The Lok Sabha had passed the law on April 3, while the Rajya Sabha cleared it on April 4. The amendment Act received Presidential assent on April 5.The new law amended the Waqf Act, 1995 in order to address the regulation of Waqf properties which are properties dedicated exclusively for religious or charitable purposes under Islamic law..A batch of petitions were filed before the top court challenging the amendment's validity including by Congress Member of Parliament (MP) Mohammad Jawed and All India Majlis-e-Ittehadul Muslimeen (AIMIM) MP Asaduddin Owaisi. More such petitions followed in the ensuing days.The petitioners moved the Court contending that the amendment amounts to discrimination against Muslims. According to the petitioners, the amendments selectively target Muslim religious endowments and interfere with the community’s constitutionally protected right to manage its own religious affairs.Six Bhartiya Janta Party-ruled States have also moved the Supreme Court in the matter, in support of the amendment. The intervention applications were filed by the States of Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh and Assam. These States have primarily highlighted how they would be affected in case the constitutionality of the Amendment Act were to be tinkered with.At the core of the challenge is the removal of waqf by user from the statutory definition of waqf. The petitioners contention is that this omission would deprive historical mosques, graveyards and charitable properties, many of which have existed for centuries without formal waqf deeds, of their religious character..In response, the Union government has maintained that the Waqf (Amendment) Act, 2025 was brought in to curb the misuse of waqf provisions that were being misused to encroach private and government properties. In a written response to the petitions challenging the new law, the Centre said after the previous amendment to the Waqf Act in 2013, there was a 116 per cent rise in "auqaf area".Defending the abolition of the concept of 'waqf by user', the Centre said despite there being a regime of mandatory registration for all kinds of waqf since 1923, individuals or organisations used to claim private lands and government lands as waqf "which not only lead to deprivation of valuable property rights of individual citizens but similarly unauthorized claims over public properties."The Centre also said that the exclusion of "waqf by user" from the definition of waqf does not curtail the right to dedicate property to God, but merely regulates the form of dedication in keeping with statutory requirements.On the objections regarding the inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, the Centre said that the changes in the composition of these bodies do not impair the Muslim community’s rights under Article 26, it has stated. The addition of non-Muslim members are in a "microscopic minority" in the Council and Boards and their presence is meant to give inclusivity to the bodies, it was submitted..On April 17, the Central government had assured the Court that it would not enforce several key provisions of the Act for the time being. The Court had recorded this assurance, and decided not to order any express stay..Former Chief Justice of India Sanjiv Khanna earlier recused himself for hearing the petitions and referred it to a bench led by now CJI BR Gavai..Hearing today.During the hearing today, Kapil Sibal said that the law aims to capture waqf properties."This Act is for waqf protection but aimed at capturing the waqf. The law is designed in such a way that waqf property is taken away without following any process. The officer deciding is a government officer and while it is decided the property ceases to be a waqf and anybody can create a dispute. Now come to what is a waqf. It is an endowment to Allah/God. This dedication cannot be transferred to anybody. Once a waqf always a waqf," he said. He pointed out that in India, governments do no finance religious institutions and places like mosques and the same is done through contributions made by private individuals."Under our Constitution, State cannot possibly finance religious institution. State cannot finance a mosque for it's upkeep, a burial ground has to be made through private property. So people often at the end of life dedicate their properties as waqf. There is no chadhava in temples. Mosques and graveyards do not have 2000 or 3000 crores corpus," Sibal argued."But I go to dargahs.. it is often done," CJI Gavai said. "I am talking about mosques," Sibal replied.He then proceeded to flag some of the major issues with the amendment law."There was a Waqf Act of 2013. Now (by new law), waqf by user is done away with. The concept recognised in the Babri masjid case is done away with. It was held 'waqf by user' which is to be proven by evidence is done away with. They say in 1925 Act etc there was a provision for registration and if registration not done, then it is not waqf by user at all," he contended. "Under the old Act, was registration was mandatory or voluntary," the Bench asked. "The word used was 'shall'," Sibal pointed out."That does not make it mandatory. But were consequences laid down?" CJI Gavai asked."Not these consequences. The Act said the muttuwali who did not register cannot continue. There was penal consequences for him. That is all," Sibal replied."So nothing else. So on account of non-registration nothing could happen.. We will take your statement as stated. We will record it then. So from 1913 to 2013, though there was a provision for registration of waqf, there were no consequences for non-compliance except removal of muttawali," the Court remarked..Sibal further said that preserving structures as ancient monuments did not change its character as a waqf under the earlier regime but under the new regime, Muslims will be precluded from using such sites."The right to freely practice religious activity is curtailed and thus violative of Article 25 of the Constitution once it is declared as an ancient or a protected monument under the preservation act. So though earlier it was preserved as an ancient monument, the identity of the property did not change from being a waqf and get transferred to the government," he pointed out."Yes people still pray at Khajuraho temple though it is preserved as an ancient monument. Does it (new Waqf law) take away your right to pray," the Bench asked."Yes, declaration as an ancient monument or protected site under the 1958.. such waqf property shall be void. Once waqf is void I can no longer go there," Sibal pointed out.On the requirement that one has to be a practicing Muslim for at least 5 years for dedication of a property as waqf, Sibal said,"Who will decide that then? If I am on my death bed and I want to make a waqf I have to prove that I have been practicing Muslim. This is per se unconstitutional per se.".He then flagged the issue of inclusion of non-Muslims in Central Waqf Council and Waqf Boards."Next right to manage waqf property taken away. Majority of the Central waqf council members are non-Muslims. Section 9 of the new act. It is 12 non-Muslims and 10 Muslims. Earlier, it was all Muslims. Now it is all nominated," he highlighted.The Court pointed out that the law does not prohibit appointment of Muslims.Sibal responded by saying that non-Muslims can also be appointed. "I am saying now they are not prohibited to appoint non-Muslims. Unless the court interprets it in such a way that all other members are Muslims. Every religious endowment .. not a single person is a Muslim or non-Hindu," he stated."What about Bodh Gaya? All are Hindus," the Bench pointed out "That is because the place of worship is for both Hindus and Buddhists. Bodh Gaya Act says it. I knew you will ask this," Sibal replied..Sibal said that the law effectively captures Waqf."They capture the waqf, expropriate the waqf. Then there is also violation of Article 26 and 27. Then comes the CEO of the board who shall be appointed by the state and also shall also be non-Muslim," he pointed out."It says nominee," Justice Masih said."Earlier Act says 'shall be Muslim'. It is complete departure and an attempt to take over through creeping accusations the waqf properties," Sibal alleged.CJI Gavai said there is a presumption of constitutionality attached to laws but also hinted that the "Bench knows what is happening". "There is a presumption of constitutionality for the statute and courts cannot interfere unless a glaring case is made out. This is what we have been taught since college. Otherwise we know what is happening (I won't say anything more)," he stated.Sibal further pointed out that when the proceedings relating to a dispute about a property is still ongoing, the property ceases to be a waqf even before a report in that regard comes."It is said even when the proceedings are on under Section 3(C), the property ceases to be a waqf," he argued."Even before the report comes?" the CJI asked."Without an inquiry also..it stops being a waqf," Sibal said."So it stops being a waqf and it can no longer be accessed," CJI Gavai remarked."So no judicial process and then you force the waqif to go to court and challenge the decision of the collector and by the time decision comes the property has ceased to be a waqf," Sibal said. "So during pendency, the status of the property is changed under 3(c) and waqf loses possession," the CJI queried."Yes before inquiry starts it is no longer a waqf," Sibal stated..He pointed out how anybody can simply raise a dispute or claim to a waqf property and the concerned property will immediately cease to be a waqf even before the dispute is decided."Any village panchayat, or private individual can also raise a grievance and property ceases to be waqf," Sibal argued. "Can it be any dispute between private parties?" Justice Masih asked. "Any dispute," Sibal said."It has to be relatable," Justice Masih said."Does not say so. The government officer will decide it and will be a judge in his own cause. No questions asked. It is a determination. This section usurping my rights is unjustly arbitrary and violative of my rights," Sibal contended.Sibal underscored that mosques are not secular properties but Muslim property dedicated to God. "Creation of waqf is itself not secular. It is a Muslim property dedicated to God," he stated..Senior Advocate Rajeev Dhavan, also appearing for the petitioners, said that the law is contrary to various Constitution Bench judgments of the Supreme Court including the Ayodhya verdict."This act is in teeth of number of constitution bench decisions. Babri Masjid etc which held 'waqf by user' is a part of Waqf," he stated.He also sought to distinguish between waqf and trust."Trust is their own area and waqf is different. If a trust is similar to the nature of waqf, it shall be treated the same way. Also this is a first time that there has been redefinition of religion in a religious act. So what was the need for this large scale sweeping change. We are a secular nation. One of my client is a Sikh. He says I want to contribute to waqf and I believe this property should not be taken away. The question also goes to the root of secularism," Dhavan argued..Senior Advocate Abhishek Manu Singhvi said that the law is intended to infuse terror by forcing a person to keep visiting the office to register a waqf."It is a recipe to make the applicant keep visiting office to have waqf registration forever. This is just to infuse terror in the and that is how no contrivance cannot be proven. Endowments are there in every religion ..which religion endowment asks you to prove that you have been practicing it for last 5 years etc? Who asks them proof of religion," Singhvi said.He further pointed out how a dispute with respect to a waqf property can be started anytime and the property immediately loses its status as waqf even before the dispute is decided."A dispute can be started anytime. Once it starts it loses the status of waqf. It is being argued that there is a huge surge in waqf registrations. The portal was opened in 2013. They are treating as a portal upload process as increase in waqf. This is an updating process," he argued..Senior Advocates CU Singh and Huzefa Ahmadi also argued for the petitioners.Ahmadi flagged the consequences of Section 3D of the Act which lays down that any declaration or notification issued under this Act or under any previous Act in respect of waqf properties shall be void, if such property was a protected monument or protected area under the Ancient Monuments Preservation Act, 1904 or the Ancient Monuments and Archaeological Sites and Remains Act, 1958."1954 act made registrations compulsory. These amendments are ipso facto retrospective and all Waqfs by a touch of hand gets obliterated due to section 3D. This Act also singles out one community... Another thing this court has restrained further suits concerning ancient monuments etc. But all this will be resurrected with this Act. By virtue of 3D that happens and thus it is overreaching provision," Ahmadi submitted.Hence, there should be a total stay on Section 3D, he contended."Impact of Section 3D requires absolute staying as the impact is drastic and it will affect age old mosques," he stated.The hearing will resume on Wednesday..[Read Live Coverage]